- Permanent impairment {NEL}
- Strains and sprains (cervical)
- Strains and sprains (shoulder)
- Suitable employment (factors other than physical capability)
- Suitable employment (suitable for worker's capabilities)
- Loss of earnings {LOE} (eligibility) (impairment)
The worker, a personal support worker, received entitlement for the left shoulder. The issues on appeal were as follows: a) entitlement to LOE benefits from November 16, 2018; b) entitlement to LOE benefits from January 2019 to October 2019; c) entitlement to LOE benefits from March 3, 2020; d) the suitability of the modified work offered by the accident employer; e) recognition of a permanent impairment and entitlement to a non-economic loss (NEL) assessment for the left shoulder; and, f) recognition of a permanent impairment and entitlement to a NEL assessment for the neck.
The Vice-Chair allowed the appeal, in part.The worker had entitlement to full LOE benefits from November 15, 2018 to her return to work in October 2019, with the exception of a brief period of non-compensable disability in February 2019 and related hospitalization from March 5 to 7, 2019.The modified duties offered by the accident employer on November 15, 2018, were not physically suitable. The worker also refused the alternative offer of February 1, 2019 duties due to the overnight nature of the work, as she had young children at home at the time. Her spouse worked overnight shifts and therefore would not be available to care for them. The duties also exceeded the worker's physical abilities. Tribunal decisions have found that family situations, such as the availability of childcare, are personal characteristics that must be taken into account when considering a worker's availability for work (see Decision No. 3205/16R2). Although the worker did not have a formal restriction on her file regarding overnight work, her regular hours prior to her work-related injury were from 3 to 9:30 p.m. The modified hours would have been a substantial change from her pre-injury duties. The worker's family status was a personal characteristic that pre-existed her work-related injury and must be considered when determining the suitability of modified work. The worker was participating in active health care treatment during the period when suitable employment was not offered, and was entitled to full LOE benefits. The worker resumed her participation in healthcare treatment for her work-related injuries while in the midst of her treatment for her non-compensable condition. The worker was entitled to LOE benefits after March 7, 2019.The worker had permanent restrictions associated with her work-related injury to the left shoulder, despite having a normal range of motion. Tribunal decisions have considered whether a worker has a permanent impairment, and therefore entitlement to a NEL determination, despite normal objective findings (see Decision No. 136/09). The restrictions provided in the medical reporting reflected a functional abnormality or loss, and since the worker was not expected to make any further gains, this loss was permanent. The worker was entitled to a NEL determination. The worker did not have a permanent impairment for the neck. The worker was entitled to LOE benefits after March 3, 2020, or when she began losing time from work.